Maintenance

In New York, what used to be called “alimony” is now called “maintenance”.  On January 23, 2016, New York adopted a law that creates “guidelines” that are designed to assist a court in determining the amount and duration of maintenance.

The law defines the spouse with the lower income as the “payee” while it defines the spouse with the higher income as the “payor.”

“Income” is defined in the statute to be the same as defined in the Child Support Standards Act, which means that FICA and certain taxes are deducted. It also includes the income from “income-producing property distributed or to be distributed” in the divorce.

The law also created an income cap that is currently $228,000.00 for the payor spouse. This cap will increase in March of every even numbered year, based on changes in the Consumer Price Index for all urban consumers (the CPI-U).

The new law has two formulas that are used in determining the amount of maintenance. One is used if the payor spouse is the non-custodial parent. The other is used where there is no child support or when the payor spouse is the custodial parent.

The law requires that any spousal support be added to or deducted from the income of each parent when calculating child support.

Unlike child support, there is no provision to use the formula for income above the cap. Rather, the statute requires a court to determine any additional maintenance over the cap based on the consideration of a list of statutory factors.

These factors include:

1. the age and health of the parties;
2. the present or future earning capacity of the parties, including a history of limited participation in the workforce;
3. the need of one party to incur education or training expenses;
4. the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded;
5. the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
6. the existence and duration of a pre-marital joint household or a pre-divorce separate household;
7. acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
8. the availability and cost of medical insurance for the parties;
9. the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity;
10. the tax consequences to each party;
11. the standard of living of the parties established during the marriage;
12. the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;
13. the equitable distribution of marital property and the income or imputed income on the assets so distributed;
14. the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
15. any other factor which the court shall expressly find to be just and proper.

The statute also has a formula for determining the length of maintenance based on the length of the marriage.

• For marriages that have lasted 15 years or less, the duration will be 15% to 30% of the length of the marriage;
• For those couples married for more than 15 years but less than 20, the duration is 30% to 40% of the marriage;
• For those couples who have been married for more than 20 years, the duration is 35% to 50% of the length of the marriage.

The law also requires the termination of maintenance upon the death of either party or upon the payee’s marriage, including circumstance whereby the payee is living in a “married-like” relationship (if that can be proven). It also allows for a modification of maintenance upon the retirement of the payor.

Finally, since maintenance terminates upon the death of the payor, it may also be wise to maintain a life insurance policy to cover such a possibility.